[Cite as Faraj v. Qasem,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103374

ALI FARAJ PLAINTIFF-APPELLEE

vs.

HAMDI QASEM, ET AL. DEFENDANT-APPELLEES

[Appeal by Samir Mohammed Defendant-Appellant]

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-794741

BEFORE: Stewart, J., E.T. Gallagher, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: June 2, 2016 ATTORNEY FOR APPELLANT

Monica E. Russell McFadden & Freeburg Co., L.P.A. 6690 Beta Drive, Suite 320 Mayfield Village, OH 44143

ATTORNEYS FOR APPELLEES

For Ali Faraj

Jason D. Hochman Thomas A. Barni Dinn, Hochman & Potter, L.L.C. 5910 Landerbrook Drive, Suite 200 Mayfield Heights, OH 44124

For Hamdi Qasem

Nicholas E. Longauer 43 East Bridge Street, Suite 101 Berea, OH 44107

Also listed:

209 E. Bridge, L.L.C. Statutory Agent 3900 Woodland Avenue Cleveland, OH 44115

3585 L.L.C. WDW Agent Svcs Inc., Statutory Agent 1220 West Sixth Street, Suite 660 Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Samir Mohammed appeals from the court’s refusal to

grant him relief from a default judgment entered against him and in favor of

plaintiff-appellee Ali Faraj. We lack a final order and must dismiss this appeal.

{¶2} This case involves Faraj’s action against multiple defendants, including

Mohammed, on a promissory note and a demand for foreclosure on property used as

collateral on the note. A magistrate granted Faraj default judgment and money damages

against Mohammed and other defendants who are not parties to this appeal. The

magistrate’s decision certified that there is “no just reason for delay,” most likely because

a claim made against the Cuyahoga County Fiscal Officer (denominated in the complaint

as the “County Treasurer”) remained for adjudication. Mohammed objected to the

magistrate’s decision. The court approved and adopted the magistrate’s decision, but

without including the “no just reason for delay” language in its judgment entry.

Mohammed filed a Civ.R. 60(B) motion for relief from judgment, but the court denied the

motion. Faraj then filed a Civ.R. 41(A)(1) notice that he was voluntarily dismissing

without prejudice “all defendants.” {¶3} After briefing had been completed, we asked the parties to file supplemental

briefs on two issues: (1) whether the court’s failure to include the Civ.R. 54(B) “no just

reason for delay” language in its order adopting the magistrate’s decision to grant default

judgment meant that the default judgment was not final for purposes of Civ.R. 54(B); and

(2) if the default judgment was not a final order, whether Faraj’s July 15, 2015 notice of

voluntary dismissal of “all defendants” operated as a dismissal of the nonfinal default

judgment entered against appellant Samir Mohammed.

{¶4} As an appellate court, our jurisdiction applies only to “final” judgments or

orders of lower courts. See Article IV, Section 3(B)(2) of the Ohio Constitution; Gen.

Acc. Ins. Co. v. Ins. Co. of N. Am.,

,

(1989). An

order is considered “final” if it “affects a substantial right in an action that in effect

determines the action and prevents a judgment.” R.C. 2505.02(B)(1).

{¶5} As used in R.C. 2505.02(B)(1), the word “action” refers to all claims asserted

against all parties. See Civ.R. 54(B) (“In the absence of a determination that there is no

just reason for delay, any order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the

parties, shall not terminate the action as to any of the claims or parties * * *.”) The court

may, however, make final what would otherwise be nonfinal by certifying that “there is

no just reason for delay.” Id.; Chef Italiano Corp. v. Kent State Univ.,

,

(1989). {¶6} The magistrate’s decision contained the Civ.R. 54(B) certification, but the

court’s judgment entry approving the magistrate’s decision did not. This means that the

default judgment entered against Mohammed was nonfinal. We addressed this same

issue in Charter One Bank v. Tutin, 8th Dist. Cuyahoga No. 86556,

,

where we held that a court’s judgment entry approving and adopting a magistrate’s

decision without an express certification of no just reason for delay under Civ.R. 54(B)

did not create a final order because not all of the claims against all of the parties had been

adjudicated. Id. at ¶ 5. See also United Cos. Lending Corp. v. Robinson,

,

(8th Dist. 1999) (court’s adoption of a magistrate’s

decision finding no just reason for delay without incorporating the certification language

into the judgment entry adopting the magistrate’s decision is “insufficient to comply with

the judge’s duty under Civ.R. 54(B).”). {¶7} Although the default judgment was nonfinal, Mohammed asked the court to

grant him relief from it under Civ.R. 60(B). The court had no authority to grant relief

from a nonfinal judgment or order because Civ.R. 60(B), by its own terms, applies only to

a “final judgment, order, or proceeding[.]” In Harper v. MetroHealth Med. Ctr., 8th

Dist. Cuyahoga No. 81048,

, we considered a similar issue where the

court granted summary judgment to less than all defendants in a case and failed to certify

no just reason for delay. Instead of appealing, the aggrieved party filed a motion for

relief from judgment. After the court refused to grant relief from judgment, an appeal

followed. We held that the motion for summary judgment was not final (the court did

certify that there was no just reason for delay), so the court could not grant relief from

judgment. Id. at ¶ 5. See also Hadassah v. Schwartz, 1st Dist. Hamilton No. C-110699,

(finding that trial court could not entertain a Civ.R. 60(B) motion

for relief from judgment from a nonfinal default judgment).

{¶8} The same applies here. Even though the court in this case purported to deny

relief from the default judgment for substantive reasons, its ruling was nonetheless correct

because the court had no authority under Civ.R. 60(B) to grant relief from a nonfinal

default judgment. Fifth Third Bank v. Rose, 4th Dist. Gallia Nos. 07CA8 and 07CA9,

(“Civ.R. 60(B) is not the proper procedural device a party should

employ when seeking relief from a non-final order.”). {¶9} Having established that the default judgment was nonfinal, we have to

consider this added wrinkle: after the court denied Mohammed relief from judgment,

Faraj filed a notice of voluntary dismissal without prejudice against “all Defendants.”

By stating that the dismissal was directed towards “all” defendants, that dismissal

included Mohammed and all other defendants against whom interlocutory judgments had

been entered. Hutchinson v. Beazer E., Inc., 8th Dist. Cuyahoga No. 86635,

(“We have consistently followed [the] view that a voluntary

dismissal of the entire case, pursuant to Civ.R. 41(A), dissolves all prior interlocutory

orders made by the trial court in that action * * *.”); Charles Gruenspan Co., L.P.A. v.

Thompson, 8th Dist. Cuyahoga No. 77276,

(Oct. 12, 2000)

(recognizing that a voluntary dismissal, without prejudice, dissolves all interlocutory

orders).

{¶10} The notice of voluntary dismissal terminated the entire case, including the

interlocutory default judgment against Mohammed. There is no case presently before us

to consider on appeal. No matter how unintentional, it appears that Faraj threw the baby

out with the bath water.

{¶11} Appeal dismissed.

It is ordered that appellees recover of said appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, JUDGE

EILEEN T. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR